Be Neutral
A Publication of the Georgia Office of Dispute Resolution

Case Watch: For Mediators

The following case analyses are part of a regular series we publish to help neutrals broaden their knowledge of rulings of Georgia’s appellate courts that may affect your practice. Remember: mediators should not give legal advice or opinions

Review of Miller v. Miller, 288 Ga. 274, decided November 22, 2010, appeal to the Georgia Supreme Court of a ruling by Judge Bensonetta Tipton Lane, Fulton County Superior Court.

Real Estate Division in Divorce: It’s Not Just Who is on the Title

Real estate distribution between divorcing parties has become an increasingly complex topic.  Anytime there is real estate, there is usually money.  Anywhere there is money, there is a contested divorce.  Lots of money and lots of contested issues lead to lots of appeals.

Two recent articles discuss real estate division in divorce with particular attention to the names that are on the title to the property.  Both articles give extensive historical backgrounds of the case-law holdings.  Both are excellent:


“Equitable Division of Property in Georgia: What’s Mine is Mine and What’s Ours is Mine, Too,” by attorneys Rebecca Crumrine and Rachel Miller. The article was presented and discussed at the John Marshall Law Journal Symposium, “In the Best Interest Of: A Look at Family Law in Georgia,” on February 9, 2011.



“The Renewed Significance of Title in Dividing Marital Assets,” by attorneys John C. Mayoue and Michael P. Hodes, appears in the April 2011 issue of Georgia Bar Journal.

So, what has the Supreme Court held concerning the significance of the names on the title to real property?

The latest case is the subject of our review this issue, Miller v. Miller, decided November 22, 2010. While the decision addresses several division issues, the portion of the decision on real property gives us knowledge of how the Supreme Court determines the title to the property – the names on the deed. (This section begins on page 13 of the decision.)  As mediators, we cannot discount how the title is held. We need to go deep in our inquiries.

In Miller, the husband contended that the source of funds for the purchase of the marital residence and the Amelia Island lot was a prior residence purchased with premarital funds prior to the marriage.

It was established that the prior residence was deeded into both parties’ names after the marriage.  And the wife testified that the deed was given to her because of her contributions to the household.  That is, after all, one of the main principles of equitable property division.  It is also one that is difficult to contradict as it may include non-economic contributions.

The Supreme Court found that the trial court was authorized to find that the prior residence was transformed into marital property when the title was deeded into both husband’s and wife’s names.

Obviously, the husband’s argument would have been stronger if he had kept only his name on the deed and had not – on the day the residence was purchased – conveyed the property to both himself and his wife.

It is interesting to note that even though the wife made a pre-trial admission that husband had used the proceeds from the sale of a prior residence as a down payment on the new marital residence – which we would have determined were “pre-marital funds” – the trial court permitted her to withdraw her admission based on their findings of conflicting evidence. (p. 15). This decision by the trail court was also upheld on appeal.

In reading Miller, mediators will find that the Supreme Court took the opportunity to review a lot of prior cases.  This has the effect of validating those holdings, even though some are much older holdings.  Coe v. Coe, 185 Ga. 863, decided October 2009, and referenced in Miller addresses the same issue: Legal title in both names.

In Coe, the marital home was purchased after the parties were married and the deed was placed in the names of both husband and wife.  The trial court in Coe gave the following jury charge, which the husband objected to on appeal:

“Gifts of property between a husband and a wife during the marriage do not vest title in the other spouse so as to exclude that property from being divided in an equitable division of property.  And, in that regard, I will tell you that if the payer of consideration and transferee of the property are a husband and a wife, a gift shall be presumed, but this presumption may be rebutted.”

The parties had differing testimony as to where the money came from, but the jury in Coe found that the marital home should be divided equally. This decision was upheld by the Supreme Court.

The role of mediators is more important than ever to help the parties understand the consequences of gifts of property between parties.  It would not be difficult for a spouse to assume that once the real property was deeded into both spouses’ names, then it would become joint property.


Mary Ellen Cates is an attorney and registered mediator in Avondale Estates, Ga.  She has practiced domestic law exclusively since 1985.  A divorce mediator since 1998, she is also a domestic arbitrator, and she has been appointed as special master for DeKalb County Superior Court.

Phone: 404-292-3803; fax: 404-292-1510; or